J-S12009-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM R. SHEPPARD

Appellant No. 1545 EDA 2015

Appeal from the PCRA Order April 28, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-1111131-1976

BEFORE: MUNDY, J., OLSON, J., and STRASSBURGER, J.*

MEMORANDUM BY MUNDY, J.: FILED March 21, 2016

Appellant, William R. Sheppard, appeals pro se from the April 28, 2015 

order, dismissing as untimely, his petition for relief filed pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After careful 

review, we reverse the PCRA court’s order, vacate the judgment of sentence, 

and remand for resentencing.

On October 6, 1977, the trial court imposed a mandatory, aggregate 

sentence of life imprisonment without the possibility of parole, after 

Appellant was found guilty of one count each of first-degree murder and 

possession of an instrument of a crime.1 The parties agree that Appellant 

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2502(a) and 907(a), respectively.
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was under 18 years of age at the time of the offense. Appellant’s Brief at 2; 

Commonwealth’s Brief at 7. This Court affirmed Appellant’s judgment of 

sentence on September 7, 1979, and our Supreme Court denied Appellant’s 

petition for allowance of appeal on February 4, 1980. Commonwealth v. 

Shepherd, 409 A.2d 894 (Pa. Super. 1979).2 As Appellant did not seek a 

writ of certiorari from the United States Supreme Court, his judgment of 

sentence became final in 1980 when the period for filing a certiorari petition 

expired. See 42 Pa.C.S.A. § 9545(b)(3) (stating, “a judgment becomes final 

at the conclusion of direct review, including discretionary review in the 

Supreme Court of the United States and the Supreme Court of Pennsylvania, 

or at the expiration of time for seeking the review[]”). Appellant filed 

petitions for post-conviction relief in 1980, 1986, 1992, 1997, and 2006, 

none of which garnered him any relief. Appellant filed the instant petition on 

July 2, 2010; as a result, it was facially untimely. See id. § 9545(b)(1) 

(stating, “[a]ny petition under this subchapter, including a second or 

subsequent petition, shall be filed within one year of the date the judgment 

becomes final[]”). Relevant to this appeal, Appellant amended his PCRA 

petition on July 26, 2012 to include a claim based on the United States 

Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012).

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2 We note that Appellant’s last name is spelled differently in our opinion from 

his direct appeal. We further observe that a table citation is not available for 

our Supreme Court’s denial of his allocatur petition on direct appeal.
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Instantly, Appellant argues on appeal that his petition is timely under 

the new constitutional right exception at Section 9545(b)(1)(iii) because 

Miller applies retroactively to cases on collateral review. Appellant’s Brief at

4. In Miller, the Supreme Court held the Cruel and Unusual Punishment 

Clause of the Federal Constitution forbids the imposition of a mandatory 

sentence of life imprisonment without the possibility of parole upon a minor, 

even for a homicide. Miller, supra at 2460. On January 25, 2016, the 

Supreme Court decided Montgomery v. Louisiana, 136 S. Ct. 718 (2016), 

which concluded that Miller is to be applied retroactively to cases on state 

collateral review.3 Montgomery, supra at 736. 

Given that Appellant is correct that Miller is retroactive to cases on 

collateral review, we now address whether we may afford him a remedy at 

this juncture. The Commonwealth argues that Appellant may not seek a 

remand even if Miller were retroactive based on the text of Section 

9545(b)(1)(iii) and our Supreme Court’s decision in Commonwealth v. 

Abdul-Salaam, 812 A.2d 497 (Pa. 2002). Commonwealth’s Brief at 7-8 

n.2. 

Section 9545(b)(1)(iii) permits an exception to the PCRA time-bar 

when the petition in question alleges and proves “the right asserted is a 

constitutional right that was recognized by the Supreme Court of the United 

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3 Appellant’s “Motion for Leave to Submit Supplemental Notice of Authority” 

is hereby granted.
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States or the Supreme Court of Pennsylvania after the time period provided 

in this section and has been held by that court to apply retroactively.” 42 

Pa.C.S.A. § 9545(b)(1)(iii) (emphasis added). In Abdul-Salaam, our 

Supreme Court held that the General Assembly’s use of the past tense in the 

phrase “has been held” in Section 9545(b)(1)(iii) means that the applicable 

“retroactivity determination must exist at the time that the petition is filed.” 

Abdul-Salaam, supra at 502. As noted above, Appellant’s petition was 

initially filed on July 2, 2010 and amended to include Miller on July 26, 

2012, but Montgomery was not decided until January 25, 2016.

However, on February 9, 2016, this Court examined Abdul-Salaam

and held that “[t]he date of the Montgomery decision (January 25, 2016, 

as revised on January 27, 2016) will control for purposes of the 60-day rule 

in Section 9545(b)(2).” Commonwealth v. Secreti, --- A.3d ---, 2016 WL 

513341, at *6 (Pa. Super. 2016). The Court explained that this was 

necessary to “harmonize the PCRA requirements with Montgomery, Miller, 

and Abdul-Salaam and simultaneously achieve the justice this law was 

designed to promote.” Id. at *5. Therefore, consistent with Secreti, 

Appellant’s petition was timely and Miller does apply to his case. 

Furthermore, as noted above, Appellant was given a mandatory sentence of 

life imprisonment without the possibility of parole, and the Commonwealth 

acknowledges that Appellant was a minor at the time of the offense. 

Appellant’s Brief at 2; Commonwealth’s Brief at 7. As a result, Appellant is 
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entitled to resentencing, consistent with Montgomery, Miller, and 

Commonwealth v. Batts, 66 A.3d 286 (Pa. 2013).4

Based on the foregoing, we conclude Appellant’s PCRA petition was 

timely filed and he is entitled to resentencing, in light of Miller, 

Montgomery and Secreti.

5

 Accordingly, the PCRA court’s April 28, 2015 

order is reversed, the October 6, 1977 judgment of sentence is vacated, and 

the case is remanded for resentencing, consistent with this memorandum.

Order reversed. Judgment of sentence vacated. Case remanded for 

resentencing. Motion for leave to submit supplemental authority granted. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/21/2016

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4 We note that the General Assembly passed Section 1102.1 in October 2012 

to address Miller, which provides new mandatory minimum sentences for 

juveniles convicted of first-degree murder. However, Section 1102.1’s text 

limits its application to those “convicted after June 24, 2012[.]” 18 

Pa.C.S.A. § 1102.1(a), (c).

5 On remand, the PCRA court shall appoint counsel for Appellant, as it is 

axiomatic that sentencing is a critical stage of a criminal proceeding, 

requiring counsel. See generally Commonwealth v. Phillips, 93 A.3d 

847, 854 (Pa. Super. 2014) (citation omitted).